District Court Has Jurisdiction to Reduce Sentence Under 18 U.S.C. § 3582(c)(2), Even if Original Sentence Is Pending on Appeal

This case presents a question of whether a district court has jurisdiction to modify a sentence under 18 U.S.C. § 3582(c)(2) while an appeal of the original sentence is pending before this court. We determine that in this case it does.

So how did the issue present itself? Martin was sentenced to 87 months for a crack offense (the low end of the guideline range). He appealed. While his appeal was pending, the Sentencing Commission retroactively reduced the crack guidelines. The district court sua sponte reduced Martin's sentence to 70 months (the low end of the reduced range), pursuant to § 3582(c)(2), and gave the parties 60 days to object. Martin asked for a hearing on the matter, and cited several reasons why he should receive a sentence lower than 70 months. The district court refused to conduct a hearing, "as Martin had a hearing at his original sentencing. Additionally, [the court] determined it could not depart from the guidelines when modifying a sentence under § 3582(c)(2), that he established no equal protection claim, and that United States v. Booker, 543 U.S. 220 (2005), did not apply." Martin appealed a second time, and here's what happened:

Martin argues that he is entitled to remand for full resentencing, because his first sentence is unreasonable in the light of the revised guidelines. He made no objection at the time of sentencing, so we review for plain error. United States v. Anderson, 559 F.3d 348, 358 (5th Cir.), cert. denied, 129 S. Ct. 2814 (2009). As the district court is to sentence under the guidelines in effect at the time of sentencing, 18 U.S.C. § 3553(a)(4)(A)(ii), we find no error, much less plain error.

Martin next argues that we should vacate his second sentence, because the district court lacked jurisdiction. We disagree. A district court has jurisdiction to modify a sentence during appeal if doing so does not impair the prisoner’s constitutional rights. United States v. Stafford, 29 F.3d 181, 184 (5th Cir. 1994). Martin argues that the court lacked jurisdiction, because a § 3582(c)(2) procedure, unlike a full resentencing, does not allow him to argue for a departure from the guidelines or to be present and allocute. United States v. Doublin, 572 F.3d 235, 238 (5th Cir. 2009) (per curiam); United States v. Moree, 928 F.2d 654, 655-56 (5th Cir. 1991). His argument springs from the faulty premise that a retroactive guidelines change entitles a prisoner to a full resentencing. Retroactive guidelines changes entitle a prisoner only to move for sentence modification under § 3582(c)(2), not to a full resentencing. United States v. Miller, 903 F.2d 341, 349 (5th Cir. 1990). As he is not entitled to resentencing, the district court deprived him of no constitutional rights by modifying his sentence under § 3582(c)(2) during his appeal. He brings no other challenge to his modified sentence, so the judgment of the district court is AFFIRMED.

Here we have an instance of dueling panels. Castillo-Estevez holds that any error in the district court's application of the Sentencing Guidelines was not plain, despite the fact that there is controlling circuit precedent on the precise question at issue, and under that precedent the district court plainly erred.

On appeal, Castillo naturally argued that this was an ex post facto violation, because he received a more severe sentence due to a guideline change that took effect after he had completed his offense. Unfortunately, Castillo raised this argument for the first time on appeal, resulting in plain error review.

Here's what the court said:

Castillo’s argument overlooks the Supreme Court’s subsequent decision in United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), which rendered the sentencing guidelines merely advisory. In United States v. Rodarte-Vasquez, 488 F.3d 316 (5th Cir. 2007) (Jones, C.J., concurring), it was observed that the now-advisory guidelines should not raise ex post facto concerns because “the sentence imposed by the court need not be harsher under later guidelines than it would have been under the guidelines in effect when the offense was committed.” [Two circuits have agreed with that observation, two others have disagreed.]

We need not determine here whether ex post facto claims arising from the application of evolving sentencing guidelines are viable after Booker. Even if the district court’s application of the 2008 guidelines violated the ex post facto clause, the error would certainly not be “plain” in light of such post-Booker cases as Rodarte-Vasquez, Demaree, and Barton. To be “plain,” legal error must be “clear or obvious, rather than subject to reasonable dispute.” Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). See also United States v. Peltier, 505 F.3d 389, 391 n.3 (5th Cir. 2007) (“Plain error must be ‘error so obvious that our failure to notice it would seriously affect the fairness, integrity, or public reputation of [the] judicial proceedings and result in a miscarriage of justice.’”). Because the caselaw reveals a “reasonable dispute” regarding the ex post facto implications of retroactive application of the advisory guidelines, the district court’s error, if any, was not plain.

But the Fifth Circuit has already determined that ex post facto claims arising from the application of evolving sentencing guidelines are viable after Booker. In United States v. Austin, 479 F.3d 363—a pre-Rodarte-Vasquez decision reviewing a sentence imposed post-Booker—the court began its analysis by noting that,

Post-Booker, we continue to review the district court's interpretation of the Sentencing Guidelines de novo and its fact findings for clear error, although the ultimate sentence is reviewed for unreasonableness. When calculating a Guidelines sentencing range, a district court applies the Guidelines in effect at sentencing, unless the Guidelines in effect when the offense occurred would yield a lesser penalty. In such a case, to avoid ex post facto concerns, the court uses the Guidelines yielding the lesser penalty.

Later, applying that rule, Austin stated that "the offense level under the 2004 Guidelines is higher than under the 1998 Guidelines, and the 1998 Guidelines apply." The court went on to hold that the district court had incorrectly calculated the range under the older Guidelines, and even vacated the sentence on plain error review.

Thus, in light of Austin, the district court's application of more severe post-offense 2008 Guidelines in Castillo's case was not only error, but clear and obvious error. (It might very well meet the other requirements for reversal under plain error review, too.) And that should hold true even though there's a circuit split on the ex post facto question.

The opinion in Castillo-Estevez does not discuss or attempt to distinguish Austin, so there is no way to know for sure why the court did not find it controlling. (It also is not clear whether Castillo brought up Austin. The opinion says only that he relied on United States v.Kimler, 167 F.3d 889 (5th Cir. 1999), a pre-Booker decision.) In any event, because one panel may not overrule another (absent something like a statutory change or intervening Supreme Court case law), Austin should control over Castillo-Estevez.

3/10/2010 UPDATE: In an apparent response to a petition for rehearing en banc, the panel has issued a revised opinion that includes a footnote addressing Austin:

Our post-Booker decisions in United States v. Reasor, 418 F.3d 466 (5th Cir. 2005), and United States v. Austin, 479 F.3d 363 (5th Cir. 2007), do not alter our conclusion that the district court committed no plain error. Reasor is distinguishable. See Rodarte-Vasquez, 488 F.3d at 325 n.2 (Jones, C.J., concurring). Moreover, the court’s acknowledgment in Austin that retroactive guidelines application might pose ex post facto problems was dicta; ex post facto claims were not at issue on appeal because the lower court had applied the guidelines version yielding a lesser penalty. 479 F.3d at 366–67.

To be fair, Austin is a difficult read (unless you delight in reading discussions of loss-amount calculations in Medicare fraud cases). But it's hard to see how Austin's ex post facto analysis could be dicta. As near as I can tell, Austin argued that the district court should have applied the 2004 Guidelines in effect at the time of sentencing, rather than the 1998 Guidelines in effect at the time of his offense, because the loss calculation would have been lower under the later version. He also argued that the district court erred in not crediting certain funds against the loss amount (presumably under the 1998 Guidelines, since it appears that he arrived at a loss of $0 under his interpretation of the 2004 Guidelines even without this credit). The court of appeals:

acknowledged that when the Guidelines range is higher under the version in effect at the time of sentencing than under the version in effect at the time of the offense, the court must apply the earlier version "to avoid ex post facto concerns,"

rejected Austin's proposed interpretation of the applicable 2004 provisions (which would have resulted in a loss amount of $0),

applied the ex-post-facto clause to conclude that because "the offense level under the 2004 Guidelines is higher than under the 1998 Guidelines, . . . the 1998 Guidelines apply[,]" and

ultimately held that the district court incorrectly calculated the loss under the 1998 Guidelines.

Because the court necessarily had to confront the ex post facto issue to resolve the case, Austin's discussion of and application of the rule was not dicta and Austin should be controlling on the question unless and until the en banc Fifth Circuit or Supreme Court conclude otherwise. (Which may very well happen at some point, as there is a circuit split on the question.)

I. Whether the Federal Sentencing Guidelines are binding when a district court imposes a new sentence pursuant to a revised guideline range under 18 U.S.C. § 3582.

II. Whether during a § 3582(c)(2) sentencing, a district court is required to impose sentence based on an admittedly incorrectly calculated guideline range.

Stated colloquially, the first question is whether § 3582(c)(2) allows full "Booker" resentencings, complete with the ability to depart or vary below the reduced Guidelines range. As you know, the Fifth Circuit has held that the crack amendments bar any reduction below the revised Guidelines range.

Defendant Who Got 5K1.1 Departure Below Statutory Minimum Not Eligible for 3582(c)(2) Reduction, Because Sentence Was Based on Statute, Not Guidelines

The short answer (because the long one requires close examination of statutory and guideline language): "[W]e join the Fourth, Eighth, and Eleventh Circuits and hold that when a defendant is subject to a statutory minimum sentence above the upper end of his guideline range, even if the district court departs downwardly from that minimum under a statutory exception, 18 U.S.C. § 3582(c)(2) provides no authority to the district court to later modify the sentence based on amendments to the guideline range." If you want to get deep in the weeds of this issue, read on.

Our facts: In 2005, Carter was convicted of a crack offense carrying a statutory mandatory minimum sentence of 10 years' imprisonment. That was higher than the Guideline range of 87 to 108 months, so the Guideline sentence was 120 months. The Government moved for a §5K1.1 substantial assistance departure. The court granted it, and sentenced Carter to 36 months.

November 1, 2007 rolls around, along with a retroactive reduction of the crack guidelines. Carter filed a motion to reduce his sentence, pursuant to 18 U.S.C. § 3582(c)(2).

He argued that his 36-month sentence represented a 59 percent reduction from the 87-month low end of the Presentence Report’s guideline calculation, that a correct guideline range in light of the crack cocaine amendments would be 70 to 87 months, and therefore that the district court should reduce this portion of his sentence to 59 percent below 70 months. This would result in a sentence of 29 months, rather than 36, on the possession count.

The district court denied Carter's motion, finding that he wasn't eligible for a reduction under § 3582(c)(2) because his original sentence was based on the statutory mandatory minimum, not the subsequently-amended crack guidelines.

The court of appeals agreed, relying on the reasoning of a Fourth Circuit decision involving similar facts.

The phrase “based on a sentencing range” [in § 3582(c)(2)] straightforwardly aligns with the familiar sentencing practice of initially calculating a base range and then considering grounds for departing from it. In contrast to that typical situation, when an applicable statutory minimum sentence is greater than the high end of the guideline range, that minimum—not the otherwise applicable guideline range—is the starting point for sentencing. See U.S.S.G. § 5G1.1(b) (“Where a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence shall be the guideline sentence.”). Indeed, the district court lacks authority to impose a sentence below the statutory minimum absent a statutory exception. . . . There is no dispute that Carter was subject to a statutory minimum sentence greater than the high end of his guideline calculation, whether calculated with or without the crack cocaine amendments. In this circumstance, the sentence was “based on” the statutory minimum, not the guideline range.

Carter countered by pointing to the language of 18 U.S.C. § 3553(e), which is the statutory authorization for substantial assistance departures. It directs a court to impose such a sentence "in accordance with the guidelines and policy statements issued by the Sentencing Commision." That language, Carter argued, "refer[s] to the otherwise applicable guideline range[,]" meaning that "the statutory minimum sentence no longer applie[s]." The court disagreed:

Nothing in § 3553(e) indicates that a statutory minimum sentence gives way to an otherwise applicable guideline range when a district court reduces the sentence based on the defendant’s substantial assistance to the government. Rather, § 3553(e)describes the familiar procedure of a downward departure from a baseline sentence. The Sentencing Commission has indicated that the applicable policy statement for § 3553(e) is U.S.S.G. § 5K1.1, which is the general provision governing downward departures from the guidelines. . . . Section 5K1.1 provides that “[u]pon motion of thegovernment stating that the defendant has provided substantial assistance . . . the court may depart from the guidelines” (emphasis added). Accordingly, the Commission implicitly considers a statutory minimum sentence to be analogous to a low-end guideline from which the court may depart. That is the interpretation we give to § 3553(e) as well. . . . Furthermore, inasmuch as the statutory minimum remains the baseline sentence from which the court may downwardly depart, we do not agree with Carter that the phrase “in accordance with the guidelines and policy statements issued by the Sentencing Commission” refers to ordinary guideline ranges. Instead, we interpret it to refer to such guidelines and policy statements as the Commission may create specifically to implement § 3553(e). As noted in Hood, 556 F.3d at 235, the applicable policy statement is the downward departure provision of U.S.S.G. § 5K1.1, which states principles for determining whether and how far to downwardly depart; the sentencing commission has not created any further “sentencing ranges” for such downward departures.

Carter had one more arrow in his quiver:

Whereas § 3582(c)(2) allows modification only of sentences “based on” amended sentencing ranges, Carter notes that under § 1B1.10(a)(1), a reduction may be appropriate if “the guideline range applicable to [the] defendant has subsequently been lowered as a result of [certain amendments].” (emphasis added) . . . . Carter argues that the 87 to 108 month range is “the guideline range applicable” in his case, even though a statutory minimum guideline sentence superseded that range.

The court disagreed, "conclud[ing] that the term 'guideline range applicable' in § 1B1.10 includes a statutory minimum sentence when such a minimum applies." Consequently, "a subsequent amendment to a different provision (the unutilized guideline range calculation) does not provide grounds for a sentence reduction." The court also pointed to §1B1.10's Application Note, which says that a defendant is not eligible for a sentenced reduction if the change in the guidelines "does not have the effect of lowering the defendant’s applicable guideline range because of the operation of another guideline or statutory provision (e.g., a statutory mandatory minimum term of imprisonment)."

Each Receipt of Money Is Separate Offense Under 18 U.S.C. § 641

Ever wondered what the unit of prosecution is under the theft of public money statute, 18 U.S.C. § 641? Then read on.

Reagan was charged under 18 U.S.C. § 641 for improperly receiving $41,832 over five years in Section 8 program payments from the Dallas Housing Authority (DHA), which administers funding provided by the Department of Housing and Urban Development (HUD). The Section 8 program subsidizes rent for low income persons. Reagan jointly owned a residential property with his wife, Debra Kirvin, and, in 2002, leased this property to his wife’s mother, Leatha Kervin, a participant in the Section 8 program. One of the documents that Reagan signed and filed with the DHA to initiate Section 8 benefits included the disclaimer that “the owner (including a principal or other interested party) is not the parent, child, grandparent, sister, or brother of any member of the family.” In another document signed and filed with the DHA, Reagan similarly promised that he had “no blood, marital or other familial relationship” with the Section 8 recipient. Reagan received monthly checks from the DHA from March 2002 until September 2007, when his relationship to Leatha Kervin was discovered. Reagan was charged under § 641 with five counts of receipt of public funds, one count for each year that he received monthly Section 8 payments.

Reagan was convicted of all five counts. On appeal he argued "that the indictment was multiplicitous because although it charged five separate offenses, all 'stem[med] from a single fraudulent ac[t] in the first year.'" The Government, as you might imagine, argued that multiple counts were appropriate because Reagan violated § 641 each time he received a payment.

As multiplicity mavens know well, the the question boils down to the unit of prosecution for the offense, which depends on what the statute says.

Section 641 penalizes “[w]hoever embezzles, steals, purloins, or knowingly converts to his use or the use of another . . . any record, voucher, money, or thing of value of the United States.” 18 U.S.C. § 641. No case has been reported discussing the “allowable unit of prosecution” under § 641. Courts interpreting similarly-worded statutes, however, have concluded that each distinct taking of funds constitutes a separate violation under the statute.

Like those other statutes,

§ 641 punishes “[w]hoever embezzles, steals, purloins or knowingly converts to his use . . . any record, voucher, money, or thing of value of the United States.” 18 U.S.C. § 641 (emphases added). Accordingly, we hold that the “allowable unit of prosecution” under § 641 is each individual transaction in which government money is received, even if the transaction is part of an overarching scheme. Reagan violated § 641 each time he converted a HUD check. The five counts against Reagan therefore were not multiplicitous.

Reagan raised a couple of other challenges to his conviction, but the court declined to address them:

Reagan, who is represented by appointed counsel, does nothing beyond listing these points of error—he offers no further arguments or explanation. This is a failure to brief and constitutes waiver.

* * *

Reagan does not provide citations to any evidence in the record to support his claim. By failing to do so, Reagan has failed to show a “sufficient evidentiary foundation” for the requested instruction and therefore cannot establish abuse of discretion. This is also a failure to brief.

* * *

Reagan argues that “[t]he law favors cautioning jurors under such circumstances to take the testimony of the hostile, accomplice witness with a grain of salt,” but offers no further legal analysis.

No Error In Letting Government Amend Indictment to Conform Serial Number of Gun Alleged to Gun Introduced at Trial

Although not otherwise breaking any new ground, this opinion does address one question that the Fifth Circuit hasn't previously addressed directly: is it a mistake of form or substance if an indictment alleging a gun crime alleges a serial number different from the one on the gun introduced at trial? (Hint: it's not substance.)

Midkiff also argues that his convictions for possession of a firearm in furtherance of a drug trafficking crime and possession of a firearm by a convicted felon should be reversed because the serial number provided in the indictment for the firearm at issue was not the same as the serial number for the firearm introduced as evidence at trial. He argues that the district court erred by permitting an amendment to the indictment after the close of all evidence, particularly when the government had knowledge of the discrepancy early in the trial, if not earlier, and failed to move to amend until evidence was closed.

Generally, indictments can only be amended by a grand jury. But, “[t]he form of an indictment may be amended without return to the grand jury so long as its substance remains the same,” such as by correcting a “misnomer” or mistake of form. Thus, the issue is whether the amendment to the serial number constituted a change in form akin to correcting a typographical error or a change in substance that impermissibly altered the indictment.

Although we have never addressed this question directly, precedent from this circuit and others suggests that the particular attributes of a firearm are not actual elements of the offense. . . .

We also have noted that “[a]n amendment will be allowed if a defendant’s rights are not affected and he is adequately apprised of the charges against him so that he is protected against surprise at trial . . . .” In this case, Midkiff has not contended that he was prejudiced either by the amendment itself, or by the district court’s decision to permit the amendment after the government had rested. He does not claim that he was surprised by the trial evidence, or that his ability to defend the charges was impaired in any way. Given that Midkiff has neither alleged nor shown prejudice, we find no abuse of discretion in the district court’s decision to allow the government to reopen its case to amend the indictment.

(cites omitted). Another way to say it would be: We find no error in permitting the Government to amend the indictment to conform to the evidence it actually introduced at trial.

Snark aside, it's hard to say how far this holding would extend, since the opinion doesn't explain the exact difference between the two serial numbers. If it's a matter of one digit (as in one of the cases from another circuit), then the holding makes sense. At the other extreme, a serial number from an entirely different gun (different type, manufacturer, etc.) would seem to be more than just a misnomer. Lots of hypos in between.

Self finds the court confronting an issue of first impression in the Fifth Circuit: whether a court can accept or reject a Rule 11(c)(1)(C) plea agreement on a "piecemeal basis." Answer: no. And the reasoning appears to be equally applicable to (c)(1)(A) agreements.

Self was charged with two counts of bank robbery, and two 924(c) carrying counts. He hammered out a (c)(1)(C) agreement with the Government, which entailed a guilty plea to one bank robbery and one 924(c), dismissal of the remaining counts, and a sentence of 171 months (87 months for the bank robbery + 84 months consecutive on the gun count). Additionally, "Self waived the right to appeal 'on all grounds,' but reserved the right to appeal the failure of the district court to impose a sentence in accordance with the terms of the agreement." A magistrate judge took Self's guilty plea, and recommended that the district court accept the agreement. So far, so good.

But then—stop me if you've heard this one before—the probation officer threw a spanner in the works: "The PSR determined that Self was a career offender and recommended a career offender enhancement on [the bank robbery count] that raised the advisory guidelines range to 188 to 235 months. When the mandatory minimum of 84 months for [the gun count] was added, the resulting guidelines range was 272 to 319 months’ imprisonment." At sentencing:

The district court informed Self of his right to withdraw his guilty plea and that if he did not withdraw his plea, he might receive a sentence less favorable than that agreed to in the plea agreement. Self declined to withdraw his guilty plea. The district court reiterated that it would accept all of the plea agreement’s terms except the recommended sentence as to [the bank robbery count]. Self again stated that he did not wish to withdraw his plea. Self allocuted and his defense attorney requested the minimum sentence. The district court then sentenced Self to the minimum sentence of 188 months for [the bank robbery count], taking into account the career offender enhancement, and 84 months for [the gun count], resulting in a sentence of 272 months.

Self appealed his sentence. The Government raised the appeal waiver. The court said:

Because we conclude, infra, that the district court rejected the plea agreement in toto, Self’s waiver of rights in that agreement does not bar his appeal. [cites]. Even assuming Self’s appeal waiver was enforceable, its terms do not apply here. The plea agreement reserved Self’s right to appeal “the failure of the Court, after accepting the agreement, to impose a sentence in accordance with the terms of this agreement.” The 272 month sentence imposed by the district court exceeded the 171 month sentence stipulated to in Self’s plea agreement; the sentence was not “in accordance” with the plea agreement’s terms. There is no obstacle to Self’s appeal.

On to the substance: "Self argue[d] that he is entitled to a sentence reduction because the district court accepted the plea agreement but did not comply with its terms." But because "Self did not raise any objection to the proceedings at the sentencing hearing and he did not assert this argument as a basis for a sentence reduction in either of his post-hearing motions[,]" the court reviewed for plain error.

Before reaching the error prong, the court first had to decide whether the district court had accepted the plea agreement but failed to comply with its sentencing terms (as Self argued), or whether it had rejected the plea agreement (the Government's position). Examining the district court's statements at the sentencing hearing against the background of Rule 11, the court of appeals concluded that the district court rejected the entire plea agreement. The district court, after finding that the probation officer's calculation was correct, said "[I] advise the defendant that I will not follow, cannot follow . . . that portion of the plea agreement, which would have set the sentence . . . [at] 70 to 87 months. . . . I must inform the parties of my rejection of that part of the plea agreement." The court then advised Self, consistent with Rule 11(c)(5), of his right to withdraw his guilty plea, saying "if you don’t withdraw . . . it would be that part of the plea agreement that would be changed, however, the rest of the plea agreement will remain the same." Self opted not to withdraw his plea, and was sentenced to 272 months' imprisonment, rather than the 171-month sentence in the plea agreement. Said the court:

Although we have found no case in our Circuit that explicitly addresses whether a plea agreement may be accepted or rejected on a piecemeal basis, based on the language of Rule 11, we conclude that it cannot. See FED. R. CRIM. P. 11(c)(3)(A) (finding that “the court may accept the agreement, reject it, or defer a decision until the court has reviewed the presentence report” (emphasis added)); [a couple of cases]. Rule 11 speaks in terms of a “plea agreement” and “does not distinguish between ‘sentence bargains’” and “so-called ‘charge bargains,’ in which a criminal defendant typically pleads guilty to a specific charge in exchange for the prosecution agreeing to drop other charges.” At least one other court has concluded that the “rejection of a stipulated sentence constitutes rejection of the entire plea agreement, thereby triggering the mechanisms in . . . Rule 11(c)(5).” We agree. By rejecting the agreed-to sentence of 87 months on Count III, the district court constructively rejected the plea agreement in toto. Further indicia that the district court rejected the plea agreement is that it admonished Self as required by Rule 11(c)(5), which sets forth the warnings that must be delivered to a defendant when the court rejects a plea agreement.

(most cites omitted). Lets pause for a moment to talk about a couple of things before we move on. First, the court explained how to avoid this mess in the first place: "We note that the district court unnecessarily muddied the waters by making statements to the effect that it was rejecting 'that portion of the plea agreement' specifying an 87-month sentence. The better practice is to make clear that the entire plea agreement is being rejected and then give the Rule 11 warnings." Second, remember that Rule 11(c)(3)(A) covers not only (c)(1)(C) agreements, but (c)(1)(A)'s, as well. Plus, when you think about it, this case actually involves a combination (c)(1)(A)/(c)(1)(C) agreement. Thus, the court's reasoning should apply equally to (c)(1)(A)'s. How might this come up in the context of a (c)(1)(A)-only plea? I'm not entirely sure, but keep the case in mind if you have one those that starts going south.

Okay, back to plain error. Although the district court had discretion to reject the agreement, it "was not permitted to reject the plea agreement and then re-impose it on the parties with terms that it found acceptable."

In this respect, the colloquy between Self and the district court is problematic. Although the district court followed the dictates of Rule 11(c)(5) in advising Self that he could withdraw his plea and might be sentenced more harshly, the district court at the same time stated that the plea agreement would stand in all respects except for the sentence. Thus, it is unclear whether Self understood that if he withdrew his plea of guilty, he could either proceed to trial or try to negotiate a new plea agreement, or if he persisted in his guilty plea, he would be sentenced without any of the constraints or benefits of the plea agreement, including the government’s agreement to drop two of the counts. Instead, it appeared that the district court was offering the same terms as the plea agreement, except that the sentence would be changed.

The error affected Self's substantial rights. Instead of getting the 171-month sentence he bargained for, "Self was subjected to an altogether different bargain—one of the district court’s making. Had the district court rejected Self’s plea agreement in toto and sent the parties back to the drawing board, we cannot say what agreement they might have struck."

Which brings us to the last prong: "Failure to properly inform Self that the entire plea agreement was being rejected, compounded by the district court’s error in reimposing all of the terms of the plea agreement on Self, except for the agreed-to sentence under Rule 11(c)(1)(C), requires reversal because such error 'seriously affects the fairness, integrity or public reputation of judicial proceedings.'" Hence, vacation of Self's conviction and remand for proceedings before a different judge.

By the way, notice anything missing from the court's analysis? Perhaps a discussion of whether the error was "plain?" Don't worry, it's there. It just isn't identified as such. The court's discussion of the fairness, etc. prong notes that "[s]trict compliance with Rule 11 is generally required," and that, "[f]or the same reasons that the district court may not involve itself in plea negotiations, it may not reject a plea agreement and then, nonetheless, impose it on the parties with modifications that it chooses." Plainness is also implicit in the court's explanation of why there was error, so that part of plain error review is covered.

Certificates of Non-Existence of Record Are Testimonial for Confrontation Clause Purposes, But That's Not the Silver Bullet You Might Have Hoped For

Think way, way back, to the mists of last July, when the world—well, this blog, at least—was abuzz over whether the Supreme Court's Confrontation Clause decision in Melendez-Diaz v. Massachusetts portended a new dawn of heroic struggle against the ease with which the Government can prove the elements of illegal reentry. It seemed as clear as clear could be that Melendez-Diaz would bar the Government from relying on certificates of non-existence of record to establish the lack-of-permission-to-reapply-for-entry element of illegal reentry. Notwithstanding that clarity, we were technically flying blind until the Fifth Circuit could weigh in one way or the other. But no longer. The era of uncertainty has ended, and the result is mixed.

First, the good news: Martinez-Rios holds that CNRs are testimonial in light of Melendez-Diaz, and that the Supreme Court's decision "implicitly overruled" Rueda-Rivera, the Fifth Circuit's 2005 decision to the contrary. (The Government, to its credit, conceded the point.) The court appears to have read Melendez-Diaz's discussion of a clerk's CNR as dicta, but quite strong dicta that "spoke directly" to the issue with CNR's in illegal reentry cases. The court also pointed to Melendez-Diaz's "reli[ance] on a key distinction between records that are kept in the ordinary course of business and those that are specifically produced for use at trial: The latter are “testimonial” and are at the heart of statements triggering the Confrontation Clause. CNR’s are not routinely produced in the course of government business but instead are exclusively generated for use at trial. They are, therefore, testimonial." Finally, the court recognized that the lab reports at issue in Melendez-Diaz served the same purpose that CNR's serve in illegal reentry cases: to prove an element of the offense. Thus, "Rueda-Rivera is overruled."

But then there's the bad news: the Government may be able to prove the lack-of-consent element BRD even without a CNR. How? Let's start with a look at this case.

Martinez was arrested by a Border Patrol agent who caught him and others hitching a ride on a train in Gardendale, Texas (which is about halfway between Laredo and San Antonio, or—for you hunters out there—between Cotulla and Dilley). At the ensuing illegal reentry trial, the Government introduced Martinez's A-file—which contained a CNR—through a Border Patrol agent. The ICE official who prepared the CNR did not testify; "instead, the prosecutor introduced that evidence through [the Border Patrol agent], who explained how a CNR is processed." Martinez's "counsel objected to the introduction of the CNR on grounds that [the agent] had no personal knowledge of the case and was not the custodian of the records[,"] but did not mention the Confrontation Clause.

And you know what that means for the appeal: plain error review. The error prong is easy:

Under Melendez-Diaz, 129 S. Ct. at 2539, Martinez-Rios’s Sixth Amendment rights were violated. [The ICE official] did not testify at Martinez-Rios’s trial, despite having prepared the CNR. The government introduced the CNR through the testimony of [a Border Patrol agent], who explained how a CNR is ordinarily prepared. [The agent] personally reviewed Martinez-Rios’s A-file but did not conduct a search of any of the computerized databases associated with the CNR. Martinez-Rios was unable to cross-examine the person who had prepared a testimonial statement to be used against him at trial. Therefore, the district court erred in admitting the CNR without providing the testimony of the records analyst.

The error looks pretty plain, too, although the court skipped past that to the affected-substantial-rights prong, which requires a defendant to show "'a reasonable probability that, but for [the Confrontation Clause violation], the result of the proceeding would have been different.'" The Government said "harmless," and the court agreed:

[T]he government introduced ample evidence, other than the CNR, to establish that Martinez-Rios lacked permission to reapply. Blanco testified that he observed three individuals hanging onto the outside of a train northbound from Mexico as it pulled into the station, that he discovered Martinez-Rios hiding in the brush, and that Martinez-Rios admitted that he was from Mexico and had “no documents.” Mireles testified that Martinez-Rios said he was from San Luis Potosi, Mexico, and had crossed into the United States by wading across the Rio Grande, walking through the brush to the Laredo train depot, and boarding a northbound train. Melendez testified that he personally searched Martinez-Rios’s A-file for an I-212 (a form granting permission to enter the United States) but did not find any such document. In the face of all that testimony, even if the CNR was not entered into evidence, there was no reasonable probability that Martinez-Rios would have been acquitted.

"Okay," you say. "Big deal. I'll make sure to object on Confrontation Clause grounds. If the CNR stays out, I've got my Rule 29 motion. If that's overruled, I've got sufficiency to argue on appeal. If the CNR comes in, I'll have preserved the confrontation error, and on appeal the Government will have to show it was harmless beyond a reasonable doubt." All true. But will that make any difference?

Note that, in addition to the evidence summarized above, the court cited as support for its substantial-rights finding three court decisions applying the harmless error standard to the same question presented here. In one of those, an unpublished decision from the Second Circuit, the court found the error harmless because the defendant/alien admitted on cross-examination at trial that she had not applied for permission to reapply for entry. That's not your run-of-the-mill illegal reenty trial testimony, to be sure. But look at the other two decisions the court cites: two orders from the same judge denying motions for new trial based on the confrontation violation. In both cases, the evidence was very similar to that in Martinez-Rios: testimony from a Border Patrol agent that a search of the alien's A-file and relevant databases did not turn up the required permission, and the defendant's admission at the time of arrest that he was either present in the U.S. illegally or had not applied for permission to reapply for entry. (Martinez-Rios also cites an unpublished Tenth Circuit decision finding the evidence insufficient to support a conviction absent the CNR, but that appears to have been all the Government relied on. Plus, the court remanded for retrial in order to allow the Government to provide a foundation for the CNR.)

Of course, absent a specific factual scenario, it's impossible to say for sure how things would play out on a Rule 29 motion, motion for new trial, or an appeal raising sufficiency or a preserved Confrontation Clause violation. The point to take away, though, is that while Martinez-Rios is great on the confrontation issue, you can't simply assume that keeping out a CNR will automatically be fatal to the Government's case in an illegal reentry trial. You'll have to consider all the other direct and circumstantial evidence of lack-of-permission that the Government may introduce, along with legal and factual challenges to that evidence, and arguments for insufficiency notwithstanding such evidence. In other words, just like most any other case.